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2016 DIGILAW 1366 (HP)

Paras Ram v. Rakesh Kumar

2016-07-13

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Criminal Revision Petition under Section 397 read with section 401 of the Code of Criminal Procedure, against the judgment dated 10.7.2009, passed by learned Sessions Judge, Shimla, in Criminal Appeal No.1-S/10 of 2008 titled Paras Ram vs. Rakesh Kumar & anr., dismissing the appeal of the petitioner and confirming the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Theog, District Shimla, in Case No.124-2 of 2002, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 138 of the Negotiable Instruments Act and to pay compensation to the tune of Rs. 1,50,000/-, to the complainant. 2. The brief facts giving rise to the present petition are that the complainant and respondent (hereinafter referred to as ‘complainant’) maintained the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as Act) against the accused/petitioner (hereinafter referred to as ‘accused) and learned trial Court sentenced the accused, as stated hereinabove, which judgment was affirmed by the learned lower Appellate Court. As per the complainant, on 5.9.2002 accused issued a cheque bearing No.985107 in the sum of Rs. 1,50,000/- in favour of the complainant in the discharge of legal liability for consideration, drawn at State Bank of India, Branch, Deha. The complainant presented the said cheque in the State Bank of India, Branch Deha, for encashment on 14.9.2002, but the said cheque was dishonoured by the concerned Bank, for want of sufficient funds in the account of the accused. The State Bank of India, Branch Deha, issued dishonour slip to the complainant on the same date. On 24.9.2002 the complainant got issued a registered notice to the accused through his counsel disclosing the said fact that the cheque has been dishonoured for want of sufficient funds in his account and demanded the payment of the amount within fifteen days from the date of receipt of the notice. The notice was received by the accused on 1.10.2002, but he failed to pay the said amount. 3. In order to prove his case and bring home the guilt of the accused, the complainant examined as many as two witnesses including himself. 4. The notice was received by the accused on 1.10.2002, but he failed to pay the said amount. 3. In order to prove his case and bring home the guilt of the accused, the complainant examined as many as two witnesses including himself. 4. After the closure of the evidence of the complainant, the incriminating circumstances and evidence were put to the accused, which have been admitted by him to be correct and pleaded that he had struck bargain of apple with the complainant Rs. 10,000/- were paid to the complainant through Bindu and Rs. 10,000/- were handed over by cash. The complainant did not handover to him the apple vehicle and sold the apples at his own instance. He has examined DW-1 Sandeep Kumar in defence. 5. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 6. As far as the issuance of cheque is concerned, the same is not undisputed, the accused has specifically admitted that he issued a cheque bearing No.985107. The said fact is duly proved on the strength of testimonies of CW-1 (complainant), Shri Rakesh Kumar and CW-2, Shri S.K. Panth. CW-1, Shri Rakesh Kumar who deposed that accused issued cheque Ex.C-1, which was presented by him in State Bank of India, Branch Deha, for encashment on 14.9.2002, but the cheque was dishonoured by the Bank, because of insufficiency of funds in the account of the accused in the said Bank regarding which the said Bank issued memos, Ex.C-2 and Ex.C-3. The complainant presented the said cheque in Bank and the same was dishonoured for want of sufficient funds in the account of the accused has been duly supported, corroborated and substantiated by the deposition of CW-2, Shri S.K. Panth. The testimony of CW-2, Shri S.K. Panth, could not be shattered in spite of lengthy cross-examination made on behalf of the accused. CW-2 has specifically stated in cross-examination that on 6.9.2002, there was Rs. 28,000/- in the account of the accused and Rs. 20,000/- were in the account of the accused on 14.9.2002. The authenticity and genuineness of the memos, Ex.C-2 and Ex.C-3 has not been disputed, it stands fully and firmly established that the accused had issued cheque, Ex.C-1 amounting to Rs. 28,000/- in the account of the accused and Rs. 20,000/- were in the account of the accused on 14.9.2002. The authenticity and genuineness of the memos, Ex.C-2 and Ex.C-3 has not been disputed, it stands fully and firmly established that the accused had issued cheque, Ex.C-1 amounting to Rs. 1,50,000/-, drawn at State Bank of India, Branch Deha, which was presented by the complainant for encashment in the said Bank, but the same was dishonoured for want of sufficient funds. 7. CW-1, Rakesh Kumar deposed that on 24.9.2002, he got issued a notice by registered post to the accused through his counsel and intimated the accused that the cheque, Ex.C-1, has been dishonoured for want of sufficient funds and demanded the payment of amount within 15 days from the date of receipt of the notice and notice was handed over and served upon the accused. He has proved in evidence copy of notice Ex.C-1 and postal receipt and acknowledgement, Ex.C-5 and Ex.C-6, respectively. The said fact has also been admitted by the accused in his statement under Section 313, Cr. P.C. Even the accused has stated that the notice was duly replied by him vide reply, Ex.D-2. It is also not disputed on behalf of the accused that the accused failed to make the payment of the cheque amounting to Rs. 1,50,000/- within fifteen days after the receipt of the notice. 8. In reply, Ex.D-2, of the notice, Ex.C-4, the accused has specifically stated that the cheque amounting to Rs. 1,50,000/- was issued by him for consideration of apple crop agreed to be sold by the complainant to him at the road side after plucking and packing, but he stopped the payment of the cheque for want of fulfillment of the agreement, as the complainant failed to supply the apples. The accused has not adduced any evidence in support of the fact that the payment was ever stopped by him, as a result of which the contents of the notice are false to the said effect. The accused has examined in defence one Shri Sandeep as DW-1, who is Forwarding Agent. He has specifically stated in cross-examination that the complainant agreed to sell apples to the accused in the sum of Rs. 2,10,000/-, out of which Rs. 50,000/- were paid by the accused through him to the complainant. The accused had issued cheque of Rs. The accused has examined in defence one Shri Sandeep as DW-1, who is Forwarding Agent. He has specifically stated in cross-examination that the complainant agreed to sell apples to the accused in the sum of Rs. 2,10,000/-, out of which Rs. 50,000/- were paid by the accused through him to the complainant. The accused had issued cheque of Rs. 1,50,000/- to the complainant and an amount of Rs. 10,000/- was paid in cash. The apples were taken to Delhi by the accused and when he came back after three days, he disclosed that the bilty was in the name of R.R, hence the price of the apples was not paid to him. He asked him to get the cheque handed over to him. In his cross-examination, DW-1 has specifically stated that he alongwith accused visited K.G.S Commission Agent. K.G.S. Commission Agent disclosed that the sale price of the apple had been taken by the accused and Bilty was retained by them. He has specifically admitted that the accused did not pay the amount of cheque to the complainant. He has also admitted that the apple had been sold by the accused. 9. In view of the aforesaid versions, it stands fully established that the accused was under an obligation or liability to make the payment of Rs. 1,50,000/- to the complainant as price of the apples sold by the complainant to the accused, but he failed to make the payment of said amount and the cheque so issued by the accused stood dishonoured for want of sufficient funds, when presented for encashment. Even as per the provisions contained under Section 139 of the Act, it has to be presumed, until and unless contrary is proved that the complainant received the cheque of the nature referred to in Section 138 for the discharge in whole or in part or any debt or other liability. The accused tried to prove non-existence of any debt or liability, but the said defence is not probablised, as a result of which it has to be concluded that the cheque, Ex.C-1, was issued by the accused in favour of the complainant in the discharge of legal liability. 10. The accused tried to prove non-existence of any debt or liability, but the said defence is not probablised, as a result of which it has to be concluded that the cheque, Ex.C-1, was issued by the accused in favour of the complainant in the discharge of legal liability. 10. Keeping in view the above facts and circumstances of the case, learned Courts below properly appreciated the evidence on record and rightly came to the conclusion that the accused had committed the breach of Section 138 of the Negotiable Instruments Act, making himself liable for conviction and sentence. Since there is no illegality, impropriety or incorrectness in the impugned judgments, therefore, the revision petition is dismissed being devoid of any merit. Pending applications, if any, shall also stands disposed of.